중간 보고서 번호 306, 1997년 3월
Interim Report No 306, March 1997
참고/링크 자료 :
Interim Report - Report No 306, March 1997
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
E. The Committee's conclusions
320. Before examining the merits of the case, the Committee takes note of the Government's request to adjourn the case. The Committee also notes the advice from the Government that agreement has been reached on the reopening of the debate in the National Assembly on the labour legislation. The Committee regards this as an important development and trusts that it will lead to further change in accordance with the recommendations it has already made.
321. The Committee further notes that the Government has not yet fully responded to the complaints lodged on 28 December 1996 and 28 January 1997 and requests the Government to do so without delay. In this respect the Committee urges the Government to provide a detailed explanation of the changes made to the legislation on 26 December and of the reasons for those changes. The Committee intends to proceed to examine the changes made to the previous legislation and the new legislation, while taking due account of the latest developments and, where necessary, of the absence of detailed information from the Government.
Allegations of a legislative nature
322. After the completion of the work of the Presidential Commission on Industrial Relations Reform, the Government submitted draft bills to the National Assembly which adopted them. However, the Committee observes that the main legislative issues which it had raised, first, in Case No. 1629 (see 286th Report, paras. 558-575; 291st Report, paras. 416-426; and 294th Report, paras. 259-274) and then in Case No. 1865 (see 304th Report, paras. 242-254) have not been fully resolved.
323. In this respect, the Committee would recall that the following issues have been the subject of its comments in the above-mentioned reports: the prohibition of trade union pluralism; the non-recognition of the right to organize of private and public schoolteachers and of public servants; violations of the right of workers' organizations to draw up their constitutions; the right of organizations to elect their representatives in full freedom; the prohibition of third-party intervention in the settlement of disputes; interference in the financial independence of unions; the intervention of the administrative authority in collective bargaining; recourse to emergency powers to end strikes; and a very broad list of essential services where the right to strike is prohibited.
324. The Committee notes with regret that a number of provisions which are contrary to freedom of association principles do not appear to have been amended by the new legislation. In the present case, some of these provisions have been the subject of allegations by the complainants, namely the prohibition of the right to organize of private and public schoolteachers and of public servants and interference in the financial independence of trade union organizations.
325. As regards the first point, the Committee underlines the importance that it attaches to the recognition of the right to organize of workers without distinction whatsoever, including public servants and teachers. It therefore again strongly urges the Government to take the necessary measures without delay so that these categories of workers have the right to establish and join organizations of their own choosing. The application of this principle in practice implies that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) should be registered without delay so that it can legally defend and promote the interests of its members.
326. As regards interference in the financial independence of unions, the Committee recalls that section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind requires prior authorization from the public authorities when an organization wants to collect contributions in cash or in kind from non-members. In the absence of any information on the amendment of this provision, the Committee stresses once again that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 430). The Committee therefore requests the Government to take appropriate measures to repeal this provision in order to ensure that unions enjoy financial independence.
327. The Committee had commented on other provisions which have been modified. These include the prohibition on multiple trade unions, the prohibition on trade unions' political activities, the prohibition of third-party intervention in the settlement of disputes, the list of essential services in which disputes are submitted to compulsory arbitration and the impossibility of keeping trade union membership in case of dismissal.
328. As regards the prohibition on multiple trade unions, the Committee notes that this prohibition will only be lifted from the year 2000 at the industrial and national levels, and 2002 at the enterprise level. The direct consequence of upholding these prohibitions until these dates is that the KCTU cannot be registered before a period of three years. The KCTU will therefore continue to be considered as illegal, which carries the risk of sanctions being imposed on its leaders who would continue to carry out legitimate trade union activities on the organization's behalf. It is the Committee's view that such a situation is manifestly incompatible with the fundamental principle of freedom of association that workers should have the right to establish and join organizations of their own choosing. The Committee notes, moreover, that this impossibility of obtaining registration would also apply to the organizations which were mentioned in the KCTU's initial complaint, namely the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union.
329. While, by adopting the provision in question, the Government undertakes to establish trade union pluralism in the future, the Committee cannot consider the terms of this provision to be satisfactory. In effect, the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays. The Committee therefore urges the Government to take the necessary measures to render trade union pluralism legal without delay. The application of this principle should result in the registration of the KCTU and the other trade union organizations mentioned in the preceding paragraph.
330. The Committee notes that the new provisions remove the general prohibition on trade unions' political activities. According to the texts of the main provisions transmitted by the Government, it would appear, however, that a trade union will be disqualified if its main objective lies in political or social activities. The Committee considers that the lifting of the general prohibition on political activities constitutes, without any doubt, an improvement in the application of freedom of association principles. The Committee nevertheless would need additional information on the scope of "social activities" which are mentioned in the new provision in order to be able to make an informed decision thereon. The Committee considers in effect that if this term is meant to cover all activities by organizations which are aimed at improving the general welfare of workers, then the provision in question would be in violation of the right of trade unions freely to organize their activities. The Committee requests the Government to provide information on this provision.
331. As regards the prohibition of third-party intervention in the settlement of disputes, the Committee notes that the prohibition in question has been removed. It appears, however, that employers' and workers' organizations have to notify the names of persons who could intervene as third parties with the Labour Ministry. The Committee believes that this provision would be contrary to freedom of association principles if the Minister of Labour had discretionary powers to refuse the names notified to him. The Committee considers in effect that organizations of employers and workers should have the right to choose, without any hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures. The Committee therefore requests the Government to confirm that such is the case within the framework of the new provisions.
332. Regarding the list of essential services enumerated in the new legislation, the Committee notes that the complainants refer to several sectors, some of which would appear to have been added to the list which had already been the subject of the Committee's previous comments. The Committee had considered previously that the law stipulated quite a broad category of public utility services which did not all constitute essential services in the strict sense of the term (see 294th Report, para. 264). The Committee notes that the Government has not dealt with the complainants' allegations on this point. In this respect, the Committee recalls that the prohibition of the right to strike should be limited to services the interruption of which would endanger the life, personal safety or health of all or part of the population (see Digest, para. 516). On the basis of this definition, the Committee considers that the Mint, transport, petroleum installations, banking, broadcasting and communications do not constitute essential services in the strict sense of the term. It therefore requests the Government to provide further information and take the necessary measures to ensure that the list of essential services is modified accordingly.
333. Concerning the right of dismissed workers to union membership, the Committee observes that any worker in this situation who appeals to the Central Labour Relations Commission will not be deprived of his union membership until the Commission hands down a final decision. The Committee must emphasize that a provision of this nature is incompatible with freedom of association principles since it deprives the person concerned of joining the organization of his choice. Moreover, the Committee considers that this provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. The Committee therefore urges the Government to review the provision in question so that the principle of free affiliation will be respected.
334. Finally, the ICFTU mentions new provisions which, in its view, constitute serious restrictions on freedom of association. It refers in this regard to the replacement of strikers with other workers, to the prohibition on workplace occupations during strikes, to the prohibition on remuneration of workers for periods when they have been on strike and to the prohibition on employers from remunerating full-time union officers.
335. Regarding the replacement of strikers, the Committee observes that under the terms of the new legislation, employers are allowed to replace strikers with other workers from within the business concerned during industrial action. In cases where a union shop agreement exists and substitute workers cannot be found inside the business and significant business loss is expected to be incurred by industrial action, employers will be allowed to hire workers from outside the business concerned during a specified period with the permission of the Labour Relations Commission.
336. The Committee has already examined on several occasions cases relating to the hiring of workers during strike action. It has considered in this respect that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association (see Digest, op. cit., para. 570). The Committee has also considered that if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights (see Digest, op. cit., para. 571). Moreover, national legislation pertaining to trade union rights, and in this case the right to strike, should be in conformity with freedom of association principles. The Committee notes that the legislation contains a certain number of guarantees since the hiring takes place during a specified period, with the permission of the Labour Relations Commission. The Committee stresses, nevertheless, that this provision is only acceptable from the standpoint of freedom of association if it applies to essential services in the strict sense of the term.
337. As regards the complaint concerning the prohibition on workplace occupations during strikes, the Committee requests the Government to provide detailed information in response. However, the Committee draws the attention of the Government to the view it has adopted in several cases that "Regarding various types of strike action denied to workers (tools-down, go-slow, work-to-rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful" (see Digest, op. cit., para. 496). The Committee has also decided that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries (see Digest, op. cit., para. 586).
338. The Committee notes that under the terms of the new legislation, the remuneration of workers for the strike period is prohibited. In this respect, the Committee requests the Government to provide information in response to this allegation so that it may be examined in full knowledge of all the facts.
339. As regards the prohibition on employers from remunerating full-time union officers, the Committee notes that this new provision will be applied from the year 2002. The Committee requests the Government to provide information in this respect so that it may examine this allegation in full knowledge of all the facts.
340. Having thus examined the provisions adopted by the National Assembly in December 1996, the Committee is bound to note that much remains to be done in order for the legislation to be brought into full conformity with freedom of association principles. In this respect, the Committee takes note of the Government's statement to the effect that after an agreement that was reached between the ruling and opposition parties, debates over the labour laws are to be reopened soon at the National Assembly. In these conditions, the Committee expresses the firm hope that a new examination of the legislation by the National Assembly will lead to the full application of freedom of association principles. It requests the Government to inform it of developments in this regard.
Allegations of a factual nature
341. In its previous report on this case, the Committee had urged the Government to do everything in its power to have the charges brought against Mr. Kwon Young-Kil, still president of the KCTU, dropped. In its reply of November 1996, the Government merely reiterates the information that it supplied earlier, namely that Mr. Kwon was released on bail. Furthermore, far from dropping the charges brought against Mr. Kwon (namely the violation of the prohibition of third-party intervention), the authorities issued a new warrant for his arrest for "interference in business", following the general strike action taken against the adoption of the new legislation. They also issued warrants for the arrest of 19 other trade union leaders. Five trade union leaders were finally arrested.
342. The Government has not yet furnished any observations on these allegations, but even according to the ICFTU's own statements the trade union leaders who were arrested during the most recent strikes are now released. It further appears that these warrants were withdrawn although no repeal has been formally issued. The ICFTU nevertheless provides a list of trade unionists who are still detained or wanted for events that took place prior to the most recent strikes.
343. The Committee must express its serious concern at this situation. It considers that, if the Government wishes to build a new industrial relations system founded on principles of freedom of association, it must first of all, in order to establish a climate of confidence, drop the charges brought against trade unionists for pursuing their legitimate trade union activities, including strike action, and release those who are still detained. The Committee therefore urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect. It requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report.
344. The Committee notes the latest allegations presented by the ICFTU concerning police intervention in trade union marches and the harassment that an international trade union mission sent to the country was subjected to. It requests the Government to provide its observations in this regard.
345. In view of the importance of the principles which are at stake as regards the allegations both of a legislative as well as of a factual nature, the Committee considers that it would certainly be very useful for a high-level mission to be undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles. In the particular circumstances of this case, the Committee considers that there would be advantages if this mission were tripartite. The Committee expresses the hope that the Government will respond positively to this suggestion, which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
The Committee's recommendations
346. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) As regards the legislative aspects of this case, the Committee urges the Government:
(i) to take the necessary measures without delay so that public servants and teachers can establish and join organizations of their own choosing;
(ii) to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members;
(iii) to repeal section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind in order to ensure that unions enjoy financial independence;
(iv) to take the necessary measures to render trade union pluralism legal without delay;
(v) to proceed with the registration of the KCTU as well as of the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union;
(vi) to provide information on the scope of the term "social activities" which could justify the disqualification of a trade union;
(vii) to ensure that organizations of employers and workers have the right to choose, without hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures;
(viii) to provide further information on, and to take the necessary measures to modify the list of essential services where the right to strike is prohibited;
(ix) to review the provision concerning the right of dismissed workers so that the principle of the free affiliation of workers with the trade union of their choice is respected;
(x) to limit the hiring of workers from outside the business to replace strikers to essential services in the strict sense of the term;
(xi) to provide detailed information in reply to the allegation concerning the prohibition on workplace occupations during strikes;
(xii) to provide information in response to the allegation that the remuneration of workers for the strike period is prohibited;
(xiii) to provide information in respect of the allegation concerning the prohibition on employers from remunerating full-time union officers;
(xiv) to inform it of developments regarding the new examination of the legislation by the National Assembly.
(b) As regards the allegations of a factual nature:
(i) the Committee expresses its concern over the important number of trade unionists who are still detained;
(ii) the Committee requests the Government to drop the charges brought against trade unionists for pursuing their legitimate trade union activities including strike action and to release those who are still detained;
(iii) the Committee urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect;
(iv) the Committee requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report;
(v) the Committee requests the Government to provide its observations on the allegations concerning police intervention in trade union marches and the harassment that an international trade union mission was subjected to.
(c) The Committee requests the Government to examine the possibility of a high-level tripartite mission being undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles.
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